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Friday, October 1, 2010

Legal commentators are beginning to speculate that hate crime and other criminal charges may be brought, or at least, sought to be brought by prosecutors in Middlesex County, New Jersey (the jurisdiction in which the Rutgers University dormitory where the tragic webcam voyeurism took place). (NOTE: Crime, Politics and Policy was about two days ahead of the pack.)

Readers are cautioned to look carefully at the statements made by various commentators, and to search for the actual meanings which may underlie the carefully crafted words. To be sure, there has been a rush to judgment, to demonize the two other Rutgers students.

The issue in this column is not the tragic end of the student who chose suicide as a way to solve his short-term embarrassment. Nor is the issue anything to do with gay rights, sexual morality, or even this amorphous concept of privacy rights.

The issue is the appropriateness of seeking to throw two other 18-year-olds in jail because someone else felt embarrassment, shame or humiliation.

Does our society deprive people of their liberty, their freedom, because of what they do, or because of how they may make other people feel?

If it is the latter, understand right away that this puts us on the slippery slope where one person can assert that he has been offended, or intimidated, or humiliated...and compel (through the power of the state) the other person to remain silent.

We already have expansive -- and I would argue, borderline unconstitutional -- criminal statutes and college "codes of conduct" and "speech codes" which allow people to silence others with whom they disagree, merely by asserting that they have been intimidated or harassed. The power to shut up someone is considerable indeed, and very susceptible to abuse.

Such statutes are extremely vulnerable to abuse by those individuals who have no hesitation to make false allegations in police reports or even commit perjury by uttering lies under oath in open court. The potential for abuse extends to ambitious investigators and prosecutors who may wish to score "political brownie points" by using -- or manufacturing -- cases to advance an agenda; when keeping one's job or advancing in one's career may depend on being assigned to, bringing or winning high-profile criminal cases, the personal motive to bend the rules or violate them entirely is sufficient to present the potential for an abusive or wrongful investigation, prosecution or conviction of innocent people.

Perhaps the best test of a law is its inability to be manipulated for expedient, political prosecutions. A law which is vague -- like the federal honest services statute that was partially overturned earlier this year by the Supreme Court (browse my June 2010 archives to see my earlier commentary) -- presents too much of a danger that someone engaging in regular, benign -- or simply non-criminal -- activity may be investigated, threatened or prosecuted.

Think for a few moments about how you would feel, if you -- or worse, your son or daughter -- were wrongfully accused, and then railroaded through the criminal justice process so that some ambitious young lawyer can make a name for herself.

The biggest problem is properly drawing the line, in crafting a statute that defines clearly what is "criminal" behavior as opposed to merely "undesirable" or "obnoxious" behavior or speech.

Again, while what happened in that Rutgers dorm is tragic and incredibly stupid, we should calm down and rationally consider whether two 18-year-olds deserve to be criminally charged for their behavior. Most commentary thus far seems to be incredibly callous and express a blood lust to be satisfied only when heads literally roll.

America has the best jurisprudential system in the world. We should be above the mentality of the mob that cries that because one young man committed suicide, someone else must pay.

Eric Dixon is a New York lawyer who handles and comments on civil rights, privacy and technology issues and government investigaions. He is available for comment or consultation at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com.

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